Merkel’s Conscience

von Maximilian Steinbeis

Dear Friends of Verfassungsblog,

It has happened, finally: 16 years after the Netherlands' pioneering move, Germany has joined the ranks of countries where same-sex couples can properly marry each other just like anyone else, the last European country north of the Alps and west of the former Iron Curtain (except for Northern Ireland) to do so. Glittering confetti was thrown in the Bundestag after the vote on Friday morning, provoking Speaker Norbert Lammert to admonish the deputies not to expose themselves to the "suspicion of foolishness". Which will not dampen our exultation. Verfassungsblog has time and again made the constitutional case for the adoption of the marriage for all over the years. And now, we celebrate.

Angela Merkel, the Chancellor and CDU chairwoman, was not among those who voted yes. Her reasoning was quite remarkable: she appealed to her "fundamental conviction that the constitutional protection in Art. 6 involves marriage of husband and wife". The clarification of this question should be seen as a "conscience decision". Therefore, the CDU/CSU deputies were released from the expectation to vote along the party line.

At first sight, this way of invoking the Basic Law seems to fit well with the inherent conservatism of constitutional law. The German Staatsrechtslehrer used to be a wildly conservative bunch, and to an astonishing degree still are. Constitutional law is conservative, in a certain sense: it preserves order. It gives the majority the right to rule over the minority. It gives those who have the right to say: this is mine and not up for political redistribution. My property, my privacy, my conscience.

On second sight, however, there is something wrong with Merkel’s statement. This is not conservative. This is crazy.

What the constitutional protection in Article 6 involves or not is a matter of interpretation ...